Naming Lawyers in
Complaints

Focus

As with formal complaints, informal complaints can often include
a business' attorneys as named parties. This website is focused
on privacy violations ("do not call", GLBA,
etc.), but the subject matter is more relevant to consumer
complaints in general. In particular privacy issues and other
issues involving corporate policy often involve corporate law
departments.

This is linked from a related webpage concerning naming_individuals.html when
filing formal and informal complaints in privacy violations
("do not call", GLBA, etc.).

A business' lawyers are usually involved at some point in company
policy. To the extent they are involved, it makes sense to name
them in a civil or criminal complaint against the business.

If a company policy is illegal, their lawyers have an ethical
responsibility to stop it. Unfortunately, many local bar
"ethics" rules come close to approving "The Three
Monkeys" approach to corporate accountability.

Taking this one step further, if their lawyers provided advice to
violate the law, they are co-conspirators. The only way for
businesses to disregard the law is for their employees to
cooperate in doing so. More to the point, by naming individuals,
the people implementing illegal policies may be asked to respond.

Naming the lawyers in a complaint calls this bar acceptance of
disregard of the law to task.

The Issues

Two Issues

There are two different levels of involvement by attorneys in
company activity:

1. The lawyer reviews an activity and provides
advice.

This involves issues raised by the
attorney-client relationship. More significantly, this involves
the conflicting obligations of confidence vs. the obligation to
report prospective wrongdoing.

2. The lawyer becomes an active participant in the
activity.

If the lawyer becomes actively involved in an
activity, that person becomes a principal and is directly subject
to the legal action.

Legal "Ethics" Rules

While one should expect a lawyer to uphold the law, in the US,
legal "ethics" rules suggests the opposite. The local
bar associations in many cases resist moves to require lawyer
reporting of violations.

In almost all cases, a lawyer is obligated to maintain
confidences. This includes any information regarding a client's
past criminal acts. This follows international
human rights law in order to provide a defendant with a right to
legal representation.

Where the issues are muddled regards prospective
acts. In the case of prospective act, if the person is going to
violate the law regardless of legal representation, the
engagement of the lawyer extends beyond that of protection of
civil rights.

In other words, lawyer silence about prospective
acts accomplishes the opposite results as the right to confidence
about past acts. It is legitimized corruption of the legal
system.

US bar groups suggest that the purpose of the attorney-client
privilege (the Common Law terminology) is to encourage legal
behaviour by allowing people to confide in their lawyers. Again
this is self-contradictory when applied to prospective
lawbreaking. If the client brings up the issue to the lawyer,
the client generally can be presumed to know of the legal issue.
If the client is intent on proceeding with the violation, the
only purpose of attorney-client privilege is to include the
lawyer as a de facto co-conspirator.

In the case of a corporate entity, this balances the rights of a
fictitious person to seek advise about breaking the law
with the presumed obligation of the lawyer to uphold the law.

Under some (but not all) local bar rules, lawyers have an
obligation to prevent future (prospective) wrongdoing. In
jurisdictions with this rule, the procedure is almost universally
to advise the client that the act is illegal, and that the lawyer
has an ethical obligation to intervene. If is apparent that the
client will proceed despite the advise, the lawyer must then
raise the issue with the proper authorities. Again, this is for
prospective violations.

The SEC rules require that the lawyer first go up the "chain
of command", but ultimately to report the wrongdoing unless
it is clear that the violation will not occur. This regulation
specifies a specific manner of reporting. This is significant in
that the regulation specifically requires that the attorney take
action even if the local bar's ethics rules condone "The
Three Monkeys" approach.

Silence concerning prospective acts becomes further complicated
when advice includes instruction on how to violate the law. That
could implicate the lawyer as a co-conspirator. Lawyers are
careful to avoid "smoking gun" documents, but there's
more to a conspiracy than documentation:

The client (the business) will often directly or by
implication identify obtaining advice from their law department.

This could be anything from, "Our
lawyers approved it," to something which indicates legal
opinion would have been employed. Usually an employee trying to
say something suggested (directly or indirectly) by the law
department will not be inclined to conceal that source.

Waiver of Confidence

Even if the advice is privileged, that privilege can be waived by
the client.

If the client states that the client
has been authorised to do something, that authorisation is no
longer privileged. If the client states that it came from the
lawyer, that confidence no longer exists!

The waiver of the privilege doesn't directly reach to a duty to
report; however, it does bring into question the lawyer's
involvement. That in turn at least raises the questions of:

a duty to report wrongdoing; and

the propriety of the lawyer's actions.

Therefore a lawyer advising a client on how to violate the law
would have to consider that those advised will say that the
activities were approved by the law department.

Prospective Wrongdoing

Despite the "code of silence" enforced by some bar
rules, it is still a major issue is when a lawyer knows of a
prospective violation and remains silent. Much of this
depends on the particular bar rules, and whether the lawyer was
in fact a participant.

Validity of Bar Rules

Just because the bar rules permit encourage a lawyer to conceal
prospective illegal acts doesn't mean that's the law. The local
bar rules may not be:

a set of regulations established pursuant to statute.

rules established by the highest court of that jurisdiction.

rules established by the bar association and sanctioned by
the highest court of that jurisdiction.

rules established by the bar association without official
sanction.

To the extent that the rules enjoy official sanction, it's
difficult to hold the lawyers liable; however two factors come
into play:

The bar rules must make the lawyer exempt from a violation;
and

The lawyer or law department may be deemed to be the
person(s) who initiated the violation. In that case, the same
bar rules can be applied against the lawyer.

What to Expect

Naturally, it's impossible to determine in an article like this
the nature of a specific complaint, not to mention the specific
circumstances surrounding the complaint. In general, the
inclusion of individuals depends on the agency, if any, pursuing
the complaint. As mentioned above, it may be that the part
naming the individuals may be struck from the complaint. If not,
then the response depends on the individuals and the institutions
involved.

Jobsworth Attitudes

It's not really a classical "jobsworth" attitude, but
the possibility of personal sanctions will often cause the lawyer
to be more open about wrongdoing by others. In particular,
someone who had no qualms about ignoring (or more deliberately
encouraging) a violation would be quickest to blame others for
the violation. While there is an incentive to "cover
up" a wrongdoing, there is perhaps a stronger incentive to
deny personal involvement.

As a result, naming the lawyer tends encourage favourable
resolution of the issues, at least in cases where the lawyer was
in fact involved in the violation.